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Civil Liability For Misrepresentation In Securities Comparative Study

Posted on:2004-03-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:X J WengFull Text:PDF
GTID:1116360122966855Subject:International Law
Abstract/Summary:PDF Full Text Request
This dissertation focuses on the fundamental issues relating to the civil liability for misrepresentation in securities litigations from the perspective of comparative law. The theme of the dissertation is how to establish the civil liability system for misrepresentation that is in perfect harmony with the present national situation in China, by drawing on the American experiences in both regulatory and judicial practices in this field.The dissertation is organized in a straightforward way with five chapters as well as the preface and the conclusion.Chapter I discusses China's possible framework on civil liability for misrepresentation on the basis of a comparison between the system of civil liability for misrepresentation of the U.S. and the relevant provisions of China. The U.S. securities laws adopt different civil liability criteria for misrepresentation in the primary securities market and in the secondary market. This liability system, which leads to a discriminatory treatment between investors who purchase securities from the primary market and those from the secondary market, conflicts with the trend of integration of the periodic disclosure requirement and the disclosure requirement for the issues of securities. This chapter argues that Chinese securities laws shall adopt an integrated civil liability for misrepresentation based on tort law principles, so that investors who acquire securities from different markets can resort to the same remedies. Furthermore, owing to the special features of modern securities markets, Chinese securities laws shall regard misrepresentation in the securities markets as a special type of tort so as to provide sufficient applicable and effective remedies for injured investors.The term "materiality" in information disclosure system is discussed in Chapter II. The chapter reviews and analyzes the concept of materiality in the U.S. securities laws and the disputes and controversies arising from this concept in the U.S. judicial practices. The experiences of U.S. securities law practices include that: firstly, the materiality requirement is a fundamental element in a suit for misrepresentation; secondly, the integrated disclosure system requires the unification of the standard of materiality; thirdly, the "reasonable investor theory" is more persuasive than anyother theory in respect of materiality. Since the present Chinese securities laws and regulations adopt different criteria of materiality with regard to the disclosure requirement in the primary and secondary market, this chapter argues that an integrated standard of materiality shall replace the dual criteria in the securities information disclosure system. Furthermore, the chapter argues that only when materiality is introduced as one of the elements constituting the civil liability for misrepresentation in the Chinese securities laws, i.e., the information discloser is permitted to invoke the defense that "the relevant statement is not material" to excuse himself from civil liability, can the fundamental function of the criteria of materiality be maintained in the information disclosure system as a whole.Chapter III focuses on the imputable doctrines of liability for misrepresentation. The chapter builds up the imputable liability system for Chinese securities laws within the framework of the continental law theory, through the comparison and analysis of the duty of care criterion established for the behavior of misrepresentation by relevant securities statutes and cases in the U.S. The U.S. practices adopt different duties of care including scienter, negligence and strict liability against misrepresentation under different circumstances. The chapter suggests that Chinese securities laws apply the imputable doctrine of liability for faults as a general principle. In order to facilitate lawsuits in favor of the investors who suffer from misrepresentation, the constructive faults doctrine and the objective standard of faults shall be generally applied. Except for the issuer who shall bear the liability...
Keywords/Search Tags:Information Disclosure, Misrepresentation, Civil Liability, Civil Remedy, Securities Laws
PDF Full Text Request
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